Saturday, July 14, 2007

No Joy for Malaysia's Non-Muslims: The Lina Joy Verdict and its Implications

By Joseph Chinyong Liow

On Wednesday, 30 May, the Malaysian Federal Court finally made a much-awaited decision regarding the apostasy case surrounding Lina Joy. In a landmark pronouncement which will likely reverberate across the Malaysian social-political landscape for a long time, the Federal Court ruled by a margin of 2-to-1 in favour of dismissing Lina Joy's appeal against an earlier High Court decision that she could not have the word "Islam" removed from her identity card without endorsement from the Shari'a Court, which according to Article 121 1(A) of the Malaysian Constitution governs Muslim family and personal law in Malaysia.

Lina Joy and her team of Lawyers

Born Azalina Jailani to Muslim parents on 8 January 1964, Lina Joy converted to Christianity and was baptised at the age of 26. She applied to the National Registration Department (NRD) to change her name on 10 October 1999. Her application was successful, and she was required to apply for a new identity card with her new name as a consequence. In the following application, however, her attempt to have the word "Islam" omitted from her new identity card was rejected by the NRD on grounds that she could not change her religion unless she possessed requisite documentation from the Shari'a Court endorsing her conversion (effective 1 October 1999, it became compulsory for Malaysian Muslims to have their religion "Islam" indicated on their identity cards), which she didn't have. In an attempt to have "Islam" removed from her new identity card, Lina Joy proceeded to file a suite against the Director of the NRD, the Government, and the Federal Territories Religious Council in 2001. Her suite was thrown out by both the High Court and Court of Appeal. The case was ultimately brought to the Federal Court in April 2006.

Lina Joy's Baptism Certificate

According to the Federal Court, the case pertained only to the matter of whether the NRD was right to deny Lina's application to omit the word "Islam" on her identity card without a Shari'a Court order. The undercurrents, however, flowed much deeper. At the heart of the matter was the question of who had the right and authority to define the religious status of Malaysian citizens.

After a lengthy period of deliberation during which emotions ran high among both Muslim and non-Muslim communities, the Federal Court ruled on 30 May 2007 that only an Islamic Shari'a tribunal could certify her renunciation of Islam and by virtue of that, the legitimacy of her conversion. In the eyes of the Malaysian judicial system then, Lina Joy remains a Muslim despite her public renunciation of the faith (by virtue of her baptism into the Christian religion) many years ago. The Federal Court's ruling on the high-profile Lina Joy case has implications far beyond the matter of what can or cannot be printed in a Malaysian's identity card.

First, even though the Federal Court avoided framing the issue as a constitutional one, the case has already taken on constitutional proportions in popular mindsets and discourse, and this ruling is likely to set a legal precedent on debates over religious freedom and the extent to which shari'a law enjoys precedence over civil law on the matter of religious conversion.

Second, by virtue of its high profile, the Lina Joy case further sharpened the socio-religious divide in Malaysia. Prior to this, a number of controversial High Court rulings were already exerting stress upon Malaysia's multi-cultural fabric. One such case in 2004 pertained to the rights of a Hindu mother to bring up her two sons, who purportedly converted to Islam along with her estranged husband, in the Hindu faith after she obtained custody over them. The High Court, while granting her custody of the children, also ruled that they were to remain Muslims against the mother's wishes. With this ruling, the perception set in among non-Muslims that the constitutional role of the civil High Court to protect minority rights was fast eroding.

In defence of minority rights, non-Muslim groups formed the Article 11 Coalition in May 2004 to protect the constitutional right of freedom of religion. In an obvious retaliatory measure, Muslim civil society groups mobilised and formed PEMBELA (Defenders of Islam) to stem the tide of apostasy among Muslims and defend the Islamic faith, the official religion of Malaysia, from legal challenges posed by "apostate Muslims" and non-Muslims. Since its formation, PEMBELA has grown into a mammoth coalition consisting of 70 Islamic NGOs of various shapes and sizes, including professional Malay-Muslim organisations as well.

Finally, notwithstanding Prime Minister Abdullah Badawi's protests to the contrary, the Lina Joy ruling threatens to polarise Malaysian society and will undoubtedly heighten fears of marginalisation among Malaysia's non-Muslims. The ruling effectively highlights the considerable obstacles that confront Malaysian Muslims who intend to leave Islam. The decision also indicates that those who persist in their conversion will likely have no recourse to civil law on matters pertaining to child custody, divorce, and inheritance since it is unlikely that their conversion will be recognised and endorsed by the Shari'a Court in the first place.

WATCHPOINT:Even though the ''anti-apostasy'' segments of the Malay-Muslim ground have ''won'' the Lina Joy case, it remains to be seen if any attempt by non-Muslims to further articulate their grievances in the wake of the ruling would spark a caustic response which in turn will have adverse consequences for Malaysia's already-fragile social fabric.

Joseph Chinyong Liow

Associate Professor and Head of Research (IDSS)The Rajaratnam School of International Studies